for publication in west’s hawaiʻi reports and pacific … · 2021. 1. 15. · *** for...

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

WILMINGTON SAVINGS FUND SOCIETY, FSB,

D/B/A CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE

FOR PRETIUM MORTGAGE ACQUISITION TRUST,

Respondent/Plaintiff-Appellee,

vs.

TERRENCE RYAN and LUCILLE RYAN,

Petitioners/Defendants-Appellants,

and

FIRST LIGHT ENTERPRISES LLC; BLUE WATER ALLIANCE, LLC,

Respondents/Defendants-Appellees.

________________________________________________________________

SCWC-18-0000071

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-18-0000071; CAAP-18-0000312; CAAP-18-0000388;

CIV. NO. 5CC121000306)

JANUARY 14, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.,

AND CIRCUIT JUDGE TONAKI, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY McKENNA, J.

Electronically FiledSupreme CourtSCWC-18-000007114-JAN-202109:07 AMDkt. 15 OP


2

I. Introduction

This certiorari proceeding arises out of an appeal from a

foreclosure judgment. In their certiorari application, Terrence

Ryan (“Terrence”) and Lucille Ryan (“Lucille”) (collectively,

“the Ryans”) present the following question:

Did the Intermediate Court of Appeals (“ICA”) commit

grave errors of law and/or fail to reconcile obvious

inconsistencies in its decision with those of the Hawaii

Supreme Court when the ICA concluded that the Circuit Court

did not abuse its discretion by denying the moving party’s

motion to extend time to file notice of appeal where the

moving party affirmatively inquired directly with the

Circuit Court about when the order was filed, and the

Circuit Court staff provided incorrect information to the

moving party leading the moving party to believe that the

thirty days to file the notice of appeal had not yet begun

tolling?

We hold as follows: (1) Hawaiʻi Rules of Appellate Procedure

(“HRAP”) Rule 4(a)(4)(B)1 motions to extend time for filing a

notice of appeal are not properly filed as ex parte motions; (2)

the Rules of the Circuit Courts of the State of Hawaiʻi (“RCCH”)

1 HRAP Rule 4(a)(4)(B) provides as follows:

(4) Extensions of Time to File the Notice of Appeal.

. . . .

(B) Requests for Extensions of Time After Expiration

of the Prescribed Time. The court or agency appealed

from, upon a showing of excusable neglect, may extend

the time for filing the notice of appeal upon motion

filed not later than 30 days after the expiration of

the time prescribed by subsections (a)(1) through

(a)(3) of this Rule. However, no such extension

shall exceed 30 days past the prescribed time.

Notice of an extension motion filed after the

expiration of the prescribed time shall be given to

the other parties in accordance with the rules of the

court . . . appealed from.


3

Rule 7.2(g)(5)(A)2 provision purportedly disallowing appellate

review of decisions on motions to advance hearings is

inapplicable to decisions on HRAP Rule 4(a)(4)(B) motions,

pursuant to HRAP Rule 2.1(a) (2010); (3) under the circumstances

of this case, the Ryans’ motion to advance the hearing on their

February 2, 2018 HRAP Rule 4(a)(4)(B) hearing motion should have

been granted; (4) the Ryans established “excusable neglect,” and

their HRAP Rule 4(a)(4)(B) hearing motion should have been

granted; and (5) thus, the Ryans’ February 6, 2018 notice of

appeal was effective as to all issues on appeal over which the

Intermediate Court of Appeals (“ICA”) has appellate jurisdiction

based on the Ryans’ timely appeal of the December 8, 2017 order

denying reconsideration of the order granting summary judgment

and foreclosure judgment.3

2 RCCH Rule 7.2(g)(5)(A) provides in relevant part as follows:

(5) Motion to Shorten Time for, Advance, or Reschedule

Hearing.

(A) A motion to shorten time for hearing or motion to

advance hearing shall . . . cite the authority and

state the reason(s) and factual or other basis for

the request. . . . . The assigned judge may grant

or deny the motion, and such grant or denial shall

not be subject to review or reconsideration. . . . .

3 See text accompanying infra note 18. With respect to the February 6,

2018 notice of appeal in CAAP-18-0000071, this opinion only addresses the

procedural rulings, issues (4) and (5), over which the ICA ruled appellate

jurisdiction existed. We express no opinion on the merits of the remaining

issues. We also address the issues raised in CAAP-18-0000312 and CAAP-18-

0000388, as explained below. Only issues (1) to (3) in CAAP-18-0000071,

however, remain for consideration by the ICA on remand. Id.


4

We therefore vacate the ICA’s May 7, 2020 judgment on

appeal and remand this case to the ICA for further proceedings

consistent with this opinion.

II. Background

A. Factual background

On or about February 20, 2009, the Ryans executed a

promissory note in the principal amount of $625,000 in favor of

Bank of America, N.A. (“Bank of America”). To secure payment,

the Ryans executed a mortgage encumbering real property located

in Kalāheo, Hawaiʻi. The Ryans apparently failed to make timely

payments then failed to cure the default despite Bank of

America’s written notice regarding its intent to accelerate the

loan and to foreclose.

B. Procedural background

1. Circuit court proceedings

a. Complaint, foreclosure judgment

On October 30, 2012, Bank of America filed a foreclosure

complaint against the Ryans in the Circuit Court of the Fifth

Circuit (“circuit court”).4 Between November 7, 2012, and April

1, 2013, Bank of America attempted to personally serve the Ryans

with the complaint in Kalāheo and in Washington State. After

the circuit court authorized service by certified mail, Terrence

4 The Honorable Kathleen N.A. Watanabe presided.


5

was served on March 13, 2015, and Lucille was served on March

19, 2015, at different locations within Washington State.

On March 23, 2015, the Ryans filed a pro se motion for a

120-day extension of time to respond to the complaint (“answer

extension motion”). On April 7, 2015, the circuit court legal

documents branch informed the Ryans that the motion was

deficient because it did not include a case type in the caption,

was filed without a case type and/or case number, and there was

no order submitted at the time of filing. That same day, the

Ryans responded to the memorandum, providing a case type and a

case number, but did not include an order.

Through several assignments and orders of substitution

starting on May 9, 2013, Wilmington Savings Fund Society, FSB,

D/B/A Christiana Trust, Not Individually but as Trustee for

Pretium Mortgage Acquisition Trust (“Wilmington”), substituted

as plaintiff effective December 22, 2016.

On April 27, 2017, at Wilmington’s request, the circuit

court clerk entered defaults against the Ryans for their failure

to plead or otherwise defend.5 Then, on June 21, 2017,

Wilmington filed a summary judgment motion for foreclosure.

5 Hawaiʻi Rules of Civil Procedure (“HRCP”) Rule 55 (2000) states in relevant part:

(a) Entry. When a party against whom a judgment for

affirmative relief is sought has failed to plead or

otherwise defend as provided by these rules and that fact

(continued. . .)


6

On July 21, 2017, despite the April 27, 2017 entry of

default, the circuit court filed an order granting the Ryans’

March 23, 2015 answer extension motion, but which stated: “THIS

MATTER is before the court upon [the Ryans’] Motion for an

Extension of Time to Answer Plaintiff’s Complaint for an

additional 120 days (July 21, 2015) from the date of filing of

this motion.”6

On August 31, 2017, the Ryans, now represented by counsel,

filed a memorandum in opposition to the summary judgment motion

for foreclosure.

At the September 5, 2017 hearing on the summary judgment

motion, the circuit court noted the April 27, 2017 entry of

default and granted Wilmington’s motion. On September 20, 2017,

the circuit court entered its findings of fact, conclusions of

(. . .continued)

is made to appear by affidavit or otherwise, the clerk

shall enter the party’s default.

6 In a letter dated July 21, 2017, Janis N. Efhan, the Courts Documents

Supervisor, apologized to the Ryans for the delay in processing the answer

extension motion, explaining:

Our office recently re-sent this document to the

judge for review and signature. Since no copies were

provided with your order, we are providing you 2 courtesy

certified copies. Please assure, you serve opposing party

said document to assure they are aware of the decision of

the court. When submitting documents in the future, please

provide original and copies enough for serving opposing

party(ies) and your records.

Lastly an apology for delay in the processing of

document. This document was provided to the court for

review and signature when it was first sent. For

unforeseen reasons, the[] document was not acted upon in a

timely manner.


7

law, and order granting summary judgment (“foreclosure order”),

as well as its foreclosure judgment.

b. Motion for reconsideration

On September 29, 2017, the Ryans moved for reconsideration

of the foreclosure order and judgment (“foreclosure

reconsideration motion”). The Ryans requested an opportunity to

answer the complaint and to be reheard on the summary judgment

motion. On October 9, 2017, Wilmington responded, arguing the

Ryans failed to set forth any basis for setting aside the entry

of default or the grant of summary judgment.

c. Denial of reconsideration motion

On October 20, 2017, the circuit court’s law clerk emailed

the parties’ counsel, stating: “Based on your respective

pleadings, arguments, and authorities cited, the court is

DENYING [the foreclosure reconsideration motion]. The court

requests that [Wilmington’s counsel] prepare the order and

submit it within two (2) weeks.”

On November 9, 2017, Wilmington’s counsel emailed and

mailed the proposed order denying the foreclosure

reconsideration motion to the Ryans’ counsel. On November 13,

2017, the circuit court’s judicial assistant emailed

Wilmington’s counsel asking for a status update regarding the

order. Wilmington’s counsel responded that the proposed order

had been sent to the Ryans’ counsel but that it would be


8

submitted to the circuit court in accordance with RCCH Rule 23

(2010)7 if the Ryans’ counsel did not approve it as to form. On

November 20, 2017, Wilmington filed a RCCH Rule 23 notice of

submission of the proposed order with a certificate of service

on the Ryans’ counsel. In the certificate of service,

Wilmington’s counsel expressly stated, “The undersigned hereby

certifies a copy of the foregoing Order will be duly served upon

the below parties at their respective addresses by U.S. Mail,

postage prepaid, when filed copies are received by this

office[.]”

7 RCCH Rule 23(b) provides:

(b) Party Approval or Objection to Form; Delivery to Court.

If there is no objection to the form of a proposed

judgment, decree, or order, the other parties shall

promptly approve as to form. If a proposed judgment,

decree, or order is not approved as to form by the other

parties within 5 days after a written request for approval,

the drafting party shall deliver, by filing conventionally

or electronically, the original and 1 copy to the court

along with notice of service on all parties and serve a

copy thereof upon each party who has appeared in the

action. If any party objects to the form of a proposed

judgment, decree, or order, that party shall, within 5 days

after service of the proposed judgment, decree, or order,

serve upon each party who has appeared in the action and

deliver to the court, either conventionally or through

electronic filing:

(1) A statement of objections and the reasons

therefor, and

(2) The form of the objecting party’s proposed

judgment, decree, or order.

In such event, the court shall proceed to settle the

judgment, decree, or order. Failure to file and serve

objections and a proposed judgment, decree, or order shall

constitute approval as to form of the drafting party’s

proposed judgment, decree, or order.


9

The circuit court filed its order denying the foreclosure

reconsideration motion (“order denying foreclosure

reconsideration”) on December 8, 2017. Despite the previous

certification from Wilmington’s counsel, as well as the Hawaiʻi

Rules of Civil Procedure (“HRCP”) Rule 5 (2000) requirement of

service of “[e]very order required by its terms to be served,”

Wilmington did not serve a file-stamped copy of the December 8,

2017 order denying foreclosure reconsideration on the Ryans’

counsel until February 26, 2018.

d. Ryans’ attempts to extend time to appeal

Based on the December 8, 2017 filing of the order, the

initial thirty-day deadline for filing a notice of appeal8 or a

8 HRAP Rules 4(a)(1) and (3) provide in relevant part:

Rule 4. Appeals -- When Taken.

(a) Appeals in civil cases.

(1) Time for filing. When a civil appeal is

permitted by law, the notice of appeal shall be filed

within 30 days after entry of the judgment or appealable

order.

. . . .

(3) Time to appeal affected by post-judgment

motions. If any party files a timely motion . . . to

reconsider, alter or amend the judgment or order, . . .

then the time for filing the notice of appeal is extended

for all parties until 30 days after entry of an order

disposing of the motion. . . . .

The notice of appeal shall be deemed to appeal the

disposition of all post-judgment motions that are timely

filed after entry of the judgment or order.

. . . .


10

HRAP Rule 4(a)(4)(A)9 motion to extend time for filing an appeal

was to expire on January 8, 2018. The Ryans did not file a

notice of appeal or a HRAP Rule 4(a)(4)(A) motion by January 8,

2018.

After the initial thirty-day deadline for filing a notice

of appeal expires, HRAP Rule 4(A)(4)(B) allows a party to file a

motion to extend the deadline for another thirty days based on

“excusable neglect.”10 For the Ryans, this second thirty days

for filing a motion to extend based on “excusable neglect” began

on January 9, 2018, and was to end on February 7, 2018, which

was also the deadline for filing a notice of appeal if a thirty-

day extension was granted pursuant to HRAP Rule 4(a)(4)(B).

On January 26, 2018, the Ryans submitted an ex parte motion

for a thirty-day extension to file a notice of appeal (“ex parte

extension motion”), citing HRAP Rule 4(a)(4)(B) and RCCH Rule

9 HRAP Rule 4(a)(4)(A) provides:


(A) Requests for Extensions of Time Before Expiration


from, upon a showing of good cause, may extend the

time for filing a notice of appeal upon motion filed

within the time prescribed by subsections (a)(1)

through (a)(3) of this Rule. However, no such

extension shall exceed 30 days past such prescribed

time. An extension motion that is filed before the

expiration of the prescribed time may be ex parte

unless the court . . . otherwise requires.

10 See supra note 1.


11

7.2(f) (2014).11 They contended the appeal deadline should be

extended for thirty days beyond the initial thirty-day deadline

because they did not discover until January 25, 2018, that the

order denying foreclosure reconsideration had been filed on

December 8, 2017.

Attached to the Ryans’ ex parte extension motion were

declarations from attorney Matthew K. Yoshida (“Yoshida”) and

legal assistant Jessica Taiatini (“Taiatini”). Yoshida and

Taiatini averred under penalty of perjury as follows. After

being informed that the circuit court would be denying the

foreclosure reconsideration motion, they checked Hoʻohiki12

approximately once per week for the status of the order. They

did not notice any change to Hoʻohiki “for some time,” so, on

11 RCCH Rule 7.2(f) provides:

(f) Ex parte motions. A motion entitled to be heard ex

parte shall:

(1) cite the statute, rule, or other authority

authorizing the court to entertain the motion ex parte;

(2) be supported by an affidavit or declaration

stating the reason(s) for filing the motion ex parte, the

efforts made to notify parties, and, if the motion is to

shorten time or advance a hearing pursuant to subsection

(g)(5) of this Rule, the efforts made to obtain a

stipulation or response from the other parties in the case

or the reason(s) why no attempt was made;

(3) be accompanied by a proposed order; and

(4) be served on the date that the motion was

presented to the court.

12 Until circuit court civil cases were migrated into the eCourt Kokua on-

line filing system effective October 28, 2019, the Hoʻohiki system provided online access to information in circuit court civil cases, such as documents

filed, proceedings scheduled, and minutes of past proceedings.


12

January 2, 2018, Taiatini called the circuit court’s chambers to

ask about the status of the order. A member of the circuit

court staff told Taiatini that “the order was not entered, that

the order might be on [the judge’s] desk, that [the judge] was

out at the time, and that they will follow up on the following

Monday.” On January 25, 2018, however, the Ryans noticed a new

entry in Hoʻohiki indicating an order denying the foreclosure

reconsideration motion had been filed on December 8, 2017.

Relying on the information provided by a circuit court staff

member over the phone on January 2, 2018, however, they had

believed the order had not been filed as of that date.

Although the January 26, 2018 motion was filed ex parte, a

certificate of service was attached as required by RCCH Rule

7.2(f)(4),13 certifying that a copy of the motion was being

mailed to Wilmington’s counsel. It appears Wilmington’s counsel

received the motion because a memorandum in opposition was filed

on January 30, 2018.

In its memorandum in opposition, Wilmington maintained the

Ryans’ reliance upon the circuit court staff’s representations

did not constitute “excusable neglect,” citing to Bank of Hawaii

v. Shaw, 83 Hawaiʻi 50, 924 P.2d 544 (App. 1996).14 Wilmington


14 In Shaw, the appellant missed the ten-day jury demand deadline under

the District Court Rules of Civil Procedure Rule 38(b), and argued that his

(continued. . .)


13

also contended the Ryans failed to address Wilmington’s alleged

service of the December 8, 2017 order denying foreclosure

reconsideration.15 Wilmington also argued the Ryans did not

explain why they failed to follow up with Wilmington regarding

the filing status of the order.

Wilmington also maintained the motion was procedurally

improper because HRAP Rule 4(a)(4)(B) required the Ryans to give

Wilmington notice and that the Ryans’ failure to do so violated

RCCH Rule 7.2(f)(2).16 Wilmington’s counsel’s declaration

indicated counsel was not informed of the Ryans’ intent to file

the ex parte motion.

On January 31, 2018, the circuit court filed the order

denying the January 26, 2018 motion (“order denying ex parte

extension motion”).

(. . .continued)

reliance on a clerk’s statement who told him that he had fourteen days to

file his demand for a jury trial excused his failure to file within the

deadline. 83 Hawaiʻi at 57, 924 P.2d at 551. The ICA held that “[w]ithout the support of an adequate ‘excuse,’ [the appellant’s] actions amounted to

‘mere inadvertence or bare oversight’ which, under Lii[ v. Sida of Hawaii,

Inc., 53 Haw. 353, 53 Haw. 372, 493 P.2d 1032 (1972)], were declared

insufficient grounds for a court to exercise its discretion to grant a jury

trial.” Id. Shaw is obviously distinguishable as the alleged representation

by the court clerk was one of law, which counsel had the duty and opportunity

to independently ascertain. This case involves a representation of fact, and

we discuss Shaw no further.

15 As noted, the record indicates Wilmington did not serve a file-stamped

copy of the December 8, 2017 order denying foreclosure reconsideration until

February 26, 2018. 16 See supra note 11.


14

After this denial, through an ex officio filing with the

clerk of the appellate courts on February 2, 2018, the Ryans

filed a motion for extension of time to file a notice of appeal

as a hearing motion (“appeal extension motion”). This motion

raised the same arguments and attached declarations as did the

January 26, 2018 ex parte motion. The motion was stamped

received by the circuit court on February 5, 2018, two days

before the deadline for filing a HRAP Rule 4(a)(4)(B) motion and

the appeal if the motion was granted.

Along with the appeal extension motion, the Ryans also

submitted an ex parte motion to advance its hearing date

(“motion to advance”), noting that a motion heard in the normal

course would be ineffective. This motion was stamped “DENIED”

and filed by the circuit court on February 6, 2018 (“order

denying motion to advance”). After this denial, on February 9,

2018, a notice for hearing the appeal extension motion was

filed, scheduling the hearing for March 6, 2018.

On February 2, 2018, the same day the Ryans filed the

appeal extension motion as a hearing motion, the Ryans also

filed a motion seeking reconsideration of the January 31, 2018

order denying ex parte extension motion (“reconsideration motion

of ex parte appeal denial”), raising the same arguments made in

their ex parte extension motion. In this motion, the Ryans also

cited to King v. Elkayam, CAAP-16-0000209, 2016 WL 3762628, at


15

*7 (App. July 13, 2016) (order), which had noted that

“[appellants] presented no reason for their failure, for

example, to send a messenger to court to look up the relevant

date, and we see no ‘forces beyond their control,’ -- at least

on this record —- that prevented them from taking this eminently

reasonable step.” (Alteration in original.) The Ryans argued

that, in contrast, they took the “eminently reasonable step” of

contacting the circuit court directly, but were provided

incorrect information by circuit court staff.17

On February 6, 2018, despite the circuit court’s denials of

their January 26, 2018 extension motion and their motion to

advance the hearing date on their February 2, 2018 hearing

motion, the Ryans proceeded to file a notice of appeal, in CAAP-

18-0000071. In this notice of appeal, the Ryans purported to

appeal the circuit court’s (1) September 20, 2017 foreclosure

order; (2) September 20, 2017 foreclosure judgment; (2) December

8, 2017 order denying foreclosure reconsideration; (4) January

17 The Ryans also contended the circuit court had delayed its order

granting the answer extension motion for more than two years without

providing any explanation or reason for the delay. They also noted that

despite the circuit court instructing Wilmington to “prepare the order and

submit it within two (2) weeks[,]” Wilmington did not submit a proposed order

to them for approval for three weeks or the proposed order to the circuit

court for four weeks. As such, the Ryans maintained the denial of their

motion would be treating them more harshly than the circuit court treated

itself and Wilmington.


16

31, 2018 order denying ex parte extension motion; and (5)

February 6, 2018 order denying motion to advance.18

On February 12, 2018, Wilmington filed an opposition to the

Ryans’ February 2, 2018 reconsideration motion of ex parte

appeal denial. Citing to HRAP Rule 4(a)(3),19 Wilmington

asserted that because the Ryans filed their foreclosure

reconsideration motion on September 29, 2017, (1) the circuit

court had ninety days, or until December 28, 2017, to enter an

order disposing of the foreclosure reconsideration motion, and

18 With respect to the February 6, 2018 appeal in CAAP-18-0000071, this

opinion only addresses the procedural issues in (4) and (5) over which the

ICA ruled it had appellate jurisdiction.

19 HRAP Rule 4(a)(3) now provides in its entirety as follows:

(3) Time to appeal affected by post-judgment motions. If

any party files a timely motion for judgment as a matter of

law, to amend findings or make additional findings, for a

new trial, to reconsider, alter or amend the judgment or

order, or for attorney’s fees or costs, and court or agency

rules specify the time by which the motion shall be filed,

then the time for filing the notice of appeal is extended

for all parties until 30 days after entry of an order

disposing of the motion. The presiding court or agency in

which the motion was filed shall dispose of any such post-

judgment motion by entering an order upon the record within

90 days after the date the motion was filed. If the court

or agency fails to enter an order on the record, then,

within 5 days after the 90th day, the clerk of the relevant

court or agency shall notify the parties that, by operation

of this Rule, the post-judgment motion is denied and that

any orders entered thereafter shall be a nullity. The time

of appeal shall run from the date of entry of the court or

agency’s order disposing of the post-judgment motion, if

the order is entered within the 90 days, or from the filing

date of the clerk’s notice to the parties that the post-

judgment motion is denied pursuant to the operation of the

Rule.

The notice of appeal shall be deemed to appeal the

disposition of all post-judgment motions that are timely

filed after entry of the judgment or order.

The 90-day period shall be computed as provided in

Rule 26 of these Rules.


17

(2) the circuit court clerk had five days after December 28,

2017, which would have been January 2, 2018, to notify the

parties that the foreclosure reconsideration motion was denied.

Wilmington argued that the Ryans’ assertion that they reasonably

relied on the circuit court staff’s representation on January 2,

2018, was flawed because if the circuit court did not enter the

order by December 28, 2017, the foreclosure reconsideration

motion would have been deemed denied and the circuit court clerk

would have had to notify the parties that the motion was denied

by January 2, 2018. Wilmington argued that if the Ryans had

properly monitored their calendar, they would have noticed the

ninetieth day had passed and the appeal deadline would begin.20

On February 26, 2018, Wilmington also filed an opposition

to the February 2, 2018 appeal extension motion, reasserting the

arguments it previously made. Wilmington also argued the Ryans

failed to take reasonable steps to keep informed of the status

of the December 8, 2017 order as they only called the circuit

court once between October 20, 2017, when the circuit court

informed the parties of the denial of the foreclosure

reconsideration motion, and January 25, 2018, the date the Ryans

asserted they learned of the filing of the December 8, 2017

20 However, there was no January 2, 2018 appeal deadline triggering

notification from the circuit court clerk pursuant to HRAP Rule 4(a)(3),

supra note 19, because the appeal filing deadline had already been triggered

by the December 8, 2017 order denying motion for foreclosure reconsideration.


18

order. Further, Wilmington noted the Ryans did not allege they

tried to contact Wilmington’s counsel or the circuit court a

second time, or ask a messenger to check the circuit court’s

file to determine the status of the order. Wilmington thus

maintained a single phone call in three months did not

constitute “eminently reasonable steps” justifying an extension

to file a notice of appeal.

On March 8, 2018, the circuit court filed its order denying

reconsideration motion of ex parte appeal. On April 6, 2018,

the Ryans filed their second notice of appeal, in CAAP-18-

0000312, from the March 8, 2018 order.

At the March 6, 2018 hearing on the February 2, 2018 appeal

extension motion, the parties rested on their written

submissions, and the circuit court orally denied the motion. On

April 5, 2018, the circuit court entered its order denying this

motion. On May 4, 2018, the Ryans filed their third notice of

appeal, in CAAP-18-0000388, from the April 5, 2018 order.

2. ICA proceedings

On August 13, 2018, the ICA consolidated the three appeals.

a. Opening brief

In their opening brief, in summary, the Ryans repeated

their arguments below, asserting they were deprived of an

opportunity to timely file a notice of appeal from the order

denying foreclosure reconsideration because of the circuit court


19

staff’s statements. They also asserted the circuit court abused

its discretion by denying their request to advance the hearing

on their February 2, 2018 appeal extension motion, effectively

denying them leave to file their notice of appeal, especially

when the circuit court had been lenient with Wilmington’s and

its own issues of timeliness.21

Newly attached to the Ryans’ opening brief was a

declaration from Yoshida dated June 20, 2018, raising matters

not contained in the record on appeal. Yoshida averred that on

February 5, 2018, at the request of the circuit court, Yoshida

participated in a conference call with the circuit court and

Wilmington’s counsel, and in that conference call, (1) the

circuit court stated it spoke to its staff about his

representations, who stated they did not provide incorrect

information and were upset by the way Yoshida portrayed them;

(2) Yoshida apologized to the circuit court and its staff, but

stood by his representations, particularly regarding Taiatini’s

statements regarding her call with circuit court staff on

January 2, 2018, and (3) the circuit court asked Wilmington’s

counsel if Wilmington would stipulate to an extension of time,

to which counsel indicated it was unlikely Wilmington would

21 The Ryans referred to the circuit court’s grant of Wilmington’s six ex

parte motions for extension of time to serve the complaint, and nine ex parte

motions for extension of time to file a pretrial statement; the Ryans argued

that of those fifteen ex parte motions, eight were untimely.


20

agree to such a stipulation. Yoshida asserted that as a result

of the conference call, he was left with the impression that the

circuit court believed its staff over Taiatini. The Ryans

argued that the circuit court abused its discretion as it

“abandoned its position of neutrality by seeking out evidence

outside the Court record.”

b. Answering brief

In its answering brief, Wilmington repeated its arguments

below, and also maintained the Ryans’ February 6, 2018 appeal

was not timely as to substantive issues regarding the

foreclosure. Wilmington also argued that despite Yoshida’s

declaration attached to the opening brief, the record did not

contain any reference to the February 5, 2018 conference call.

Wilmington alleged the Ryans’ attempt to introduce such

“evidence” by way of their declaration violated HRAP Rule

28(b)(10) (2016).22

22 HRAP Rule 28(b)(10) states in relevant part: (b) Opening brief. . . . .

(10) . . . . Anything that is not part of the record shall not be appended to

the brief, except as provided in this Rule.”

The occurrence of conference calls should be made part of a trial court

record. Minutes routinely reflect the occurrence of off-the-record

conferences with counsel, even if details of the conference are not included

in the record. See Hawaiʻi Court Records Rules Rule 3.1 (2012) (“With respect to court records, the Clerk of each court shall maintain a record of each

court case, including a docket, and shall maintain other records as required

by statute or rule[]”); Hawaiʻi Revised Statutes (“HRS”) § 606-8 (1993) (“A clerk shall attend and record the proceedings at all sittings of courts of

record.”).

The Ryans did not seek to have a February 5, 2018 conference call made

a part of the record via stipulation pursuant to HRAP Rule 10(e)(2)(A)

(2016). The circuit court did not make a call a part of the record pursuant

to HRAP Rule 10(e)(2)(B) (“If anything material to any party is omitted from

(continued. . .)


21

c. Reply brief

In their reply brief, the Ryans asserted that when parties

make an inquiry with the court, the parties must be able to rely

on the information the court directly provides them and must

also be granted relief if the court provides incorrect

information.

d. ICA’s memorandum opinion

In its April 9, 2020 memorandum opinion, the ICA rejected

the Ryans’ challenges.

With respect to the issues we address on certiorari, in

CAAP-18-0000071, the ICA ruled as follows. Because the order

denying foreclosure reconsideration was entered on December 8,

2017, the notice of appeal from the foreclosure order, judgment,

and order denying foreclosure reconsideration was due on January

8, 2018. Ryan, mem. op. at 8. The ICA lacked jurisdiction to

review the foreclosure order, judgment, and order denying

foreclosure reconsideration because the Ryans did not file the

first notice of appeal until February 6, 2018. Id. Although

(. . .continued)

the record by error or accident or is misstated therein, corrections or

modifications may be as follows: . . . (B) by the court . . . appealed from,

either before or after the record is transmitted[.]”). Appellate courts are

also authorized to modify the record based on HRAP Rule 10(e)(2)(C) (“by

direction of the appellate court before which the case is pending on proper

suggestion or its own initiative.”). There was no “proper suggestion” and we

decline to take the initiative to include a call as part of the record. The

record on appeal therefore does not contain any denial of the Taiatini and

Yoshida declarations regarding statements apparently made by a circuit court

staff member on January 2, 2018.


22

the February 6, 2018 notice of appeal was filed within thirty

days after entry of the February 6, 2018 order denying motion to

advance, giving the ICA appellate court jurisdiction over that

order, a trial court’s ruling on a motion to shorten time for,

advance, or reschedule a hearing is not subject to review or

reconsideration. Id. (citing RCCH Rule 7.2(g)(5)(A)).23 The ICA

also had appellate jurisdiction over the January 31, 2018 order

denying ex parte extension motion as the Ryans filed their

February 6, 2018 notice of appeal within thirty days after entry

of that order, which was immediately appealable. Id. (citing

Ditto v. McCurdy, 103 Hawaiʻi 153, 157, 80 P.3d 974, 978 (2003)).

HRAP Rule 4(a)(4), however, allows an ex parte motion for

extension of time to file a notice of appeal only if the motion

is filed before expiration of the original appeal deadline.

Ryan, mem. op. at 9. Hence, the January 26, 2018 motion, which

came after the January 8, 2018 appeal deadline expired, should

not have been filed ex parte. Id.

Thus, the ICA only addressed issues (4) and (5) in the

February 6, 2018 notice of appeal on the merits, and it affirmed

the circuit court’s January 31, 2018 order denying ex parte

extension motion and the February 6, 2018 order denying motion

to advance. Ryan, mem. op. at 8-9. The ICA ruled it lacked



23

appellate jurisdiction over issues (1) through (3), which

concerned substantive issues regarding the foreclosure. Id.

As to CAAP-18-0000312, the ICA concluded that it had

jurisdiction to review the Ryans’ April 6, 2018 notice of

appeal, which was filed within thirty days after entry of the

March 8, 2018 order denying reconsideration of ex parte appeal

extension denial. Ryan, mem. op. at 10 (citing Tax Appeal of

Subway Real Estate Corp. v. Dir. of Taxation, State of Haw., 110

Hawaiʻi 25, 30, 129 P.3d 528, 533 (2006)). The ICA also affirmed

the March 8, 2018 order on the grounds the January 26, 2018

motion was improperly filed ex parte and therefore

reconsideration was properly denied. Id.

With respect to CAAP-18-0000388, the ICA concluded that it

had jurisdiction to review the Ryans’ May 4, 2018 notice of

appeal, which was filed within thirty days after entry of the

April 5, 2018 order denying the Ryans’ February 2, 2018 appeal

extension motion. Id. The ICA ruled, however, that the Ryans

failed to establish “excusable neglect” as required by HRAP Rule

4(a)(4)(B). Id. The ICA concluded the circuit court did not

abuse its discretion by denying the motion to extend time to

file notice of appeal and affirmed the circuit court’s April 5,

2018 appeal extension denial. Id.


24

3. Supreme court proceedings

a. Certiorari application

In their certiorari application, the Ryans present the

following question:

Did the Intermediate Court of Appeals (“ICA”) commit

grave errors of law and/or fail to reconcile obvious

inconsistencies in its decision with those of the Hawaii

Supreme Court when the ICA concluded that the Circuit Court

did not abuse its discretion by denying the moving party’s

motion to extend time to file notice of appeal where the

moving party affirmatively inquired directly with the

Circuit Court about when the order was filed, and the

Circuit Court staff provided incorrect information to the

moving party leading the moving party to believe that the

thirty days to file the notice of appeal had not yet begun

tolling?

b. Response

In its response, in addition to repeating previous

arguments, Wilmington addressed this court’s opinion in Eckard

Brandes, Inc. v. Department of Labor and Industrial Relations,

146 Hawaiʻi 354, 463 P.3d 1011 (2020), issued eleven days after

the ICA’s memorandum opinion. Wilmington argues that the Ryans

failed to show “excusable neglect” even under the “new standard”

of “excusable neglect” set forth in Eckard Brandes. Wilmington

states that Eckard Brandes “made it clear that any determination

regarding ‘excusable neglect’” in HRAP Rule 4(a)(4)(B) should

lie in the trial court’s discretion. As such, Wilmington

asserts that in a case like this, the circuit court should be

given even greater latitude as the Ryans are alleging that the

reason they missed the appeal deadline was due to the circuit


25

court staff’s representations, and the circuit court would be

“ideally suited” to determine whether the alleged

representations prejudiced the Ryans.

III. Standards of review

A. Interpretation of court rules

“When interpreting rules promulgated by the court,

principles of statutory construction apply.” Kawamata Farms,

Inc. v. United Agri Products, 86 Hawaiʻi 214, 255, 948 P.2d 1055,

1096 (1997). “The interpretation of a statute [or rule] is a

question of law which this court reviews de novo.” Id.

B. Extension of time

The grant or denial of a trial court’s decision to grant a

motion for extension of time to file a notice of appeal is

reviewed for abuse of discretion. Hall v. Hall, 95 Hawaiʻi 318,

320, 22 P.3d 965, 967 (2001).

C. Finding of excusable neglect

“A trial court’s order granting a motion to extend time for

filing a notice of appeal on the grounds of excusable neglect is

reviewed for an abuse of discretion.” Eckard Brandes, 146

Hawaiʻi at 358, 463 P.3d at 1015.

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26

IV. Discussion

A. HRAP Rule 4(a)(4)(B) motions are not properly filed as ex

parte motions

An appeal extension motion based on “good cause” filed

within the initial thirty days after an appeal deadline

triggering order or judgment can be submitted ex parte pursuant

to HRAP Rule 4(a)(4)(A).24 A HRAP Rule 4(a)(4)(B) motion based

on “excusable neglect” filed after expiration of the initial

thirty days, but before expiration of the second thirty days,

however, is not properly filed on an ex parte basis. HRAP Rule

4(a)(4)(B) expressly provides that “[n]otice of an extension

motion filed after the expiration of the prescribed time shall

be given to the other parties in accordance with the rules of

the court . . . appealed from.” Thus, the ICA properly affirmed

(1) the circuit court’s January 31, 2018 order denying ex parte

extension motion, issue (4) in the Ryans’ February 6, 2018

appeal in CAAP-18-0000071; and (2) the March 8, 2018 order

denying reconsideration of ex parte appeal extension denial, the

subject of the Ryans’ April 6, 2018 appeal in CAAP-18-0000388.25

Therefore, the remaining issues we address on certiorari

are the circuit court’s (1) February 6, 2018 order denying


25 Circuit courts of course have the authority, whether under RCCH Rule 8

(1997) or under their HRS §§ 603-21.9(1) and/or (6) (1993) general powers, to

order that improper ex parte HRAP Rule 4(a)(4)(B) motions be scheduled for

hearing or submitted on the briefs.


27

motion to advance, which is issue (5) in the Ryans’ February 6,

2018 notice of appeal in CAAP-18-0000071; and (2) the April 5,

2018 order denying the Ryans’ February 2, 2018 appeal extension

motion, the subject of the Ryans’ May 4, 2018 notice of appeal

in CAAP-18-0000388.

B. The RCCH Rule 7.2(g)(5)(A) provision disallowing appellate

review of decisions on motions to advance hearings is

inapplicable to decisions on HRAP Rule 4(a)(4)(B) motions

With respect to the circuit court’s February 6, 2018 order

denying motion to advance, the ICA ruled that although appellate

jurisdiction existed, the circuit court’s ruling denying the

motion to advance is not subject to appellate review. Ryan,

mem. op. at 8. The ICA based its ruling on the language of RCCH

Rule 7.2(g)(5)(A), which expressly provides that a judge’s grant

or denial of a motion to advance26 is not subject to review or

reconsideration.

Pursuant to HRAP Rule 2.1(a), various rules of court

including the HRCP and RCCH “are hereby adopted as a part of

[the HRAP] whenever applicable.” (Emphasis added.)

26 Technically, this was a motion to shorten time for a hearing, not a

motion to advance —- the latter terminology applies to requests to advance

the date or time of hearings that have already been set. The distinction is

immaterial, as RCCH Rule 7.2(g)(5)(A) applies to both motions to shorten time

and motions to advance. In this case, because the motion has been referred

to as one to advance instead of to shorten time, we use that nomenclature.


28

Preliminarily, HRAP Rule 4(a)(4)(B) requires that “[n]otice

of an extension motion filed . . . shall be given to the other

parties in accordance with the rules of the court . . . appealed

from.” Rule 7.2(g)(5)(A) appears within Rule 7.2 governing

“Civil Motions Practice” in the circuit courts. According to

Rule 7.2(a), “Rule 7.2 applies [] to cases that are governed by

the Hawaiʻi Rules of Civil Procedure.” The underlying circuit

court case was governed by the HRCP. Thus, at first blush, RCCH

Rule 7.2(g)(5)(A) would appear “applicable” pursuant to HRAP

Rule 2.1(a) to HRAP Rule 4(a)(4)(B) motions to extend.

As explained below, however, the provision disallowing

appellate review within RCCH Rule 7.2(g)(5)(A) conflicts with

the language and intent of HRAP Rule 4(a)(4)(B), and its

application to motions filed pursuant to the rule would create

unjust and unfair results.

First, not allowing appellate review of circuit court

denials of requests to advance or shorten time for HRAP Rule

4(a)(4)(B) motion hearings conflicts with the language and

intent of HRAP Rule 4(a)(4)(B). HRAP Rule 4(a)(4)(B) allows for

the filing of motions to extend time until the appeal deadline

and implicitly requires expeditious rulings on these motions.

As noted, HRAP Rule 4(a)(4)(B) provides:


. . . .


29

(B) Requests for Extensions of Time After Expiration


from, upon a showing of excusable neglect, may extend

the time for filing the notice of appeal upon motion

filed not later than 30 days after the expiration of

the time prescribed by subsections (a)(1) through

(a)(3) of this Rule. However, no such extension

shall exceed 30 days past the prescribed time.

Notice of an extension motion filed after the

expiration of the prescribed time shall be given to

the other parties in accordance with the rules of the

court . . . appealed from.

(Emphasis added.)

Thus, HRAP Rule 4(a)(4)(B) expressly allows a motion to

extend time to appeal for an additional thirty days after

expiration of the initial thirty days to be filed up until the

thirtieth day after expiration of the initial time for filing an

appeal. Although satisfaction of the “excusable neglect”

standard would require parties to file their motions as soon as

possible, the rule expressly allows the motion to be filed right

up to the deadline, and envisions an expeditious ruling on such

motion.27

Second, when a literal interpretation of a court statute or

court rule would lead to absurd or unjust results, the court may

depart from its plain reading. United Agri Products, 86 Hawaiʻi

at 255, 948 P.2d at 1096; Franks v. City & Cty. of Honolulu, 74

Haw. 328, 341, 843 P.2d 668, 674 (1993) (principles of statutory

construction apply to interpretation of court rules). For the

27 For example, a solo practitioner or a self-represented litigant who

intended to file a notice of appeal within the first thirty days could become

seriously ill and be hospitalized up to just before the HRAP Rule 4(A)(4)(B)

deadline.

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30

reasons below, subjecting HRAP Rule 4(a)(4)(B) motions to the

RCCH 7.2(g)(5)(A) provision disallowing appellate review of

circuit court grants or denials of motions to advance hearings

could lead to absurd or unjust results.

Pursuant to RCCH Rule 7.2(b) and Exhibit B attached to the

RCCH, a motion to extend time under HRAP Rule 4(a)(4)(B) is a

hearing motion, which is generally heard on at least eighteen

days notice. In circuit court civil cases, RCCH Rule 7(a) also

generally requires that motions be served eighteen days before

their hearing dates.

Circuit courts have discretion, however, in the scheduling

of hearings on motions. Although circuit courts can also order

HRAP Rule 4(a)(4)(B) motions to be submitted on the briefs,28

normal course hearings in circuit courts are often scheduled to

be heard more than eighteen days after filing. For example, in

this case, the circuit court scheduled a September 5, 2017

hearing date on Wilmington’s June 21, 2017 summary judgment

motion for foreclosure. The circuit court scheduled a March 6,

2018 hearing date on the Ryans’ February 2, 2018 appeal

extension motion.

28 RCCH Rule 8 provides, “The court on its motion may order any matter

submitted on the briefs and/or affidavits, without oral argument.” (RCCH

Rule 7(g) allows substitution of affidavits with unsworn declarations under

penalty of law.)


31

Thus, RCCH Rule 8 provides that “[m]otions will be heard

upon 18 days written notice in accordance with Rule 7 herein,

unless otherwise ordered by the court[.]” RCCH Rule

7.2(g)(5)(A) therefore allows circuit courts to shorten time for

or advance a hearing on a civil motion. The Ryans’ February 2,

2018 appeal extension motion to advance (or shorten time)

explicitly pointed out that a normal course setting would not

allow their motion to be decided by the deadline for filing an

appeal. The circuit court denied the motion to advance on

February 6, 2018, and set the hearing in its normal course, for

March 6, 2018. The circuit court could have expeditiously

scheduled a hearing on the Ryans’ February 2, 2018 extension

motion.29

Not allowing appellate review for abuse of discretion on

RCCH 7.2(g)(5)(A) motions to shorten time or advance hearings on

HRAP Rule 4(a)(4)(B) motions would allow circuit courts that (1)

do not order that such motions be submitted on the briefs

pursuant to RCCH Rule 8 and expeditiously rule; or (2) schedule

normal course hearings more than thirty days from filing, to

effectively deny any opportunity to extend time for filing an

appeal based on HRAP Rule 4(a)(4)(B), despite the latter rule’s

language and intent. Hence, a literal interpretation applying

29 Although the hearing motion was not filed until February 2, 2018, the

ex parte motion had been filed on January 26, 2018, and Wilmington had

already responded to the merits of the motion on January 30, 2018.


32

the RCCH 7.2(g)(5)(A) provision disallowing appellate review of

circuit court decisions on motions to advance HRAP Rule

4(a)(4)(B) motions would lead to absurd or unjust results.30

We therefore hold, pursuant to HRAP Rule 2.1(a), that the

RCCH Rule 7.2(g)(5)(A) provision disallowing appellate review of

decisions on motions to advance hearings is inapplicable to

decisions on HRAP Rule 4(a)(4)(B) motions.

C. The circuit court abused its discretion by denying the

motion to advance hearing on the Ryans’ motion to extend

time for filing a notice of appeal

Having ruled appellate review of the circuit court’s

February 6, 2018 order denying motion to advance is allowed, we

next address whether the circuit court abused its discretion by

denying the motion and not scheduling a hearing by the February

7, 2018 deadline. As noted above, HRAP Rule 4(a)(4)(B)

expressly allows a motion to extend time to file a notice of

appeal for an additional thirty days after expiration of the

initial thirty days to be filed up until the thirtieth day after

expiration of the initial time for filing an appeal. Although

parties should not wait until the last minute and failure to

timely file under HRAP Rule 4(a)(4)(B) is relevant to whether

30 We also note the absurdity of not allowing appellate review of circuit

court decisions on motions to advance or shorten time on HRAP Rule 4(a)(4)(B)

motions for an abuse of discretion based on RCCH Rule 7.2(g)(5)(A), when

there is no comparable district court rule, and district court decisions on

the scheduling of HRAP Rule 4(a)(4)(B) motions would be subject to appellate

review for abuse of discretion.


33

“excusable neglect” exists, under the circumstances of this

case, we hold that the circuit court abused its discretion by

denying the motion to advance.

With respect to whether the hearing should have been

advanced, because the Yoshida and Taiatini declarations were not

refuted with any other evidence in the record on appeal, they

are taken as true.31 Thus, there is nothing in the record on

appeal contradicting the Ryans’ representations that they

checked for the status of the order denying reconsideration

weekly after the November 20, 2017 RCCH Rule 23 notice of

submission of the proposed order denying foreclosure

reconsideration, that upon not seeing it in Hoʻohiki by January

2, 2018, they called the circuit court’s chambers and were told

by staff that the “order was not entered, that the order might

be on [the judge’s] desk, that [the judge] was out at the time,

and that they will follow up on the following Monday[,]” and

that the Ryans did not realize the order had been entered on

December 8, 2017, until they re-checked Hoʻohiki on January 25,

2018.32 The circuit court would have been able to schedule,


32 At some point, Hoʻohiki showed that the order had been filed on December 8, 2017. However, the filing of the order on December 8, 2017, does not mean

that Hoʻohiki reflected the filing of the document on that date. Before circuit court civil cases migrated to eCourt Kokua on October 28, 2019,

docket entries regarding document filing had to be manually entered into

(continued. . .)


34

conduct a hearing, and enter an order on the motion before the

February 7, 2018 deadline. We therefore hold that the circuit

court abused its discretion in denying the motion to advance.

D. The Ryans showed “excusable neglect” and their February 2,

2018 appeal extension motion should have been granted

Finally, we address whether the Ryans’ February 2, 2018

HRAP Rule 4(a)(4)(B) appeal extension motion should also have

been granted. The Ryans maintain the circuit court abused its

discretion by denying this motion. Because the initial thirty-

day appeal deadline had passed, the Ryans had to show “excusable

neglect” to obtain an extension.

In general, trial courts should allow parties to exercise

their appeal rights. As Wilmington notes, in Eckard Brandes,

this court ruled that “as indicated by the United States Supreme

Court in Pioneer[ Investment Services Co. v. Brunswick

Associates Ltd. Partnership], 507 U.S. 380 [(1993)] . . .,

whether ‘excusable neglect’ exists [to obtain a HRAP Rule

4(a)(4)(B) extension] is ‘at bottom an equitable’ decision; it

is necessary to first determine whether there is ‘neglect,’ and,

if so, whether the ‘neglect’ is ‘excusable.’” 146 Hawaiʻi at

364, 463 P.3d at 1021. Eckard Brandes clarified that

“‘excusable neglect’ is to be construed pursuant to its plain

(. . .continued)

Hoʻohiki. Sometimes the manual entry of document filing was delayed. With the migration to eCourt Kokua, this should no longer be an issue.


35

language: ‘neglect’ that is ‘excusable,’ which, ‘involve[s] a

broad, equitable, inquiry’ ‘taking into account all relevant

circumstances surrounding the party’s omission[,]’” and “the

determination of whether ‘excusable neglect’ exists should lie

largely in the discretion of the court.” Id. (first alteration

in original).

Even if the steps the Ryans took constituted “neglect,”33

the neglect was “excusable.” The Ryans represent they checked

Hoʻohiki weekly for the status of the order denying

reconsideration weekly after the November 20, 2017 RCCH Rule 23

notice of submission of the proposed order denying foreclosure

reconsideration, and that upon not seeing it in Hoʻohiki by

January 2, 2018, they called the circuit court’s chambers on

January 2, 2018. Their representations regarding statements

made by circuit court staff on that date are not contradicted in

the record on appeal. Also, Yoshida averred he and Taiatini did

not realize the order had been entered on December 8, 2017,

until they re-checked Hoʻohiki on January 25, 2018.34

33 We note that Hoʻohiki contains a disclaimer that the Judiciary “does not

guarantee or represent that the information contains no errors, omissions, or

inaccuracies. The user is responsible for assessing the accuracy and

reliability of the information provided on the website.” Also, as Wilmington

argues, the Ryans could have called the circuit court after January 2, 2018

and also did not contact Wilmington’s counsel to check on the status of the

order denying foreclosure reconsideration.



36

Eckard Brandes had not been decided as of the time of the

circuit court and ICA decisions. In rejecting the Ryans’

arguments regarding “excusable neglect,” the ICA relied on Enos

v. Pacific Transfer & Warehouse, Inc., 80 Hawaiʻi 345, 910 P.2d

116 (1996). Ryan, mem. op. at 10-11. The ICA characterized the

Ryans’ argument as blaming the circuit court clerk for their

failure to timely file a notice of appeal, and ruled excusable

neglect did not exist. Id.

Enos is clearly distinguishable. In Enos, movant’s counsel

had actual notice of the filing of the judgment eighteen days

before the initial appeal deadline. 80 Hawaiʻi at 353, 910 P.2d

at 124. The primary basis for the motion to extend was

counsel’s belief that the time for filing a notice of appeal was

triggered by the filing of a notice of entry of judgment rather

than by the filing of the judgment itself. 80 Hawaiʻi at 354,

910 P.2d at 125. We held the trial court abused its discretion

by granting the motion to extend time for filing a notice of

appeal because the failure to timely file the appeal was caused

by counsel’s failure to read and comply with the plain language

of applicable procedural rules, which cannot constitute

“excusable neglect.” 80 Hawaiʻi at 355, 910 P.2d at 126.

Although the Ryans’ January 26, 2018 ex parte motion did

not comply with applicable procedural rules, their February 2,

2018 motions to extend and advance the hearing did. They did


37

not know until January 25, 2018, that the order triggering

appeal deadlines had been filed on December 8, 2017.

Wilmington also bears responsibility for this lack of

knowledge of the December 8, 2017 filing of the order denying

foreclosure reconsideration. As explained earlier, on November

20, 2017, Wilmington filed a RCCH Rule 23 notice of submission

of the proposed order with a certificate of service on the

Ryans’ counsel. In this certificate of service, Wilmington’s

counsel expressly stated, “The undersigned hereby certifies a

copy of the foregoing Order will be duly served upon the” Ryans’

counsel “when filed copies are received[.]” Yet, and in

contravention of HRCP Rule 5’s requirement of service, according

to the record, Wilmington did not serve a file-stamped copy of

the December 8, 2017 order denying foreclosure reconsideration

on the Ryans’ counsel until February 26, 2018. The Ryans’

counsel immediately took action after learning of the December

8, 2017 filing on January 25, 2018.

Thus, the circumstances of this case indicate that even if

there was “neglect,” under a “broad, equitable, inquiry” “taking

into account all relevant circumstances surrounding the party’s

omission[,]” the “neglect” was “excusable” under the

circumstances.

Hence, we hold that the circuit court abused its discretion

by denying the Ryans’ February 2, 2018 appeal extension motion.


38

As there were abuses of discretion in denying the February

2, 2018 motions to advance hearing and to extend the time for

filing an appeal, the Ryans’ February 6, 2018 notice of appeal

in CAAP-18-0000071 was timely filed from the December 8, 2017

order denying foreclosure reconsideration. Therefore, we remand

to the ICA to consider the merits of the other issues over which

appellate jurisdiction exists based on the Ryans’ timely appeal

of the December 8, 2017 order denying foreclosure

reconsideration.

V. Conclusion

Based on the reasons above, we vacate the ICA’s May 7, 2020

judgment on appeal and remand to the ICA for further proceedings

consistent with this opinion.

Gary V. Dubin, /s/ Mark E. Recktenwald

Frederick J. Arensmeyer,

and Matthew K. Yoshida /s/ Paula A. Nakayama

for petitioners

/s/ Sabrina S. McKenna

Charles R. Prather,

Robin Miller, /s/ Michael D. Wilson

Sun Young Park, and

Peter T. Stone, /s/ John M. Tonaki

for respondent